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Violence Against Women Act – Why Native Women Matter

The following is a column by Winona LaDuke originally published at News From Winona LaDuke originally published on February 13.

“A nation is not conquered until the hearts of its’ women are on the ground…” – Cheyenne proverb

Last week’s debate on the Violence Against Women Act marks what may be a very important stage in improving relations between tribal governments, state and federal governments and the protection of women. The law has been up for re-authorization for five years, and has a few sticking points, mostly around the protection of Native and immigrant women, and gay and lesbian people. Republicans until [Tuesday, February 12], had proposed amendments to strip Native American rights and jurisdiction over non- Native perpetrators of violence on the reservation. In what appears to be a change of heart, Tuesday’s passage of SB 47 with tribal jurisdiction intact, was a step in recognizing that as Senator Patrick Leahy said, in debates, “… a victim is a victim is a victim…”

Why is this particularly important? Presently, 34 percent of American Indian and Alaska Native women will be raped in their lifetimes; 39 percent will be subjected to domestic violence in their lifetimes; 67 percent of Native women victims of rape and sexual assault report their assailants as non-Native individuals, and, on some reservations, Native women are murdered at more than 10 times the national average. Not good. This set of facts is paired with unfortunately high declination rates: U.S. Attorneys declined to prosecute nearly 52 percent of violent crimes that occur in Indian country; and 67 percent of cases declined were sexual abuse related cases. This means, in the end, that Native women have been, in the words of Senator Maria Cantwell, “treated as second class citizens under the law…”

I asked Lisa Brunner, Executive Director of Sacred Spirits, a national tribal organization working on the issues, her thoughts. “Some of the concern stems from a lack of understanding of tribal jurisdiction, in some cases, tribes are just implementing criminal codes in place which allow this legal process. The answer is to fund the tribal justice system. As well, there are safeguards built into the provision which ensures that all rights guaranteed under the Constitution are given to non-Native defendants in tribal court.”

To explain further: “… the special domestic violence jurisdiction is narrowly restricted to apply only to instances of domestic or dating violence where: 1) the victim is an Indian, 2) the conduct occurs on tribal lands; and 3) where the defendant either lives or works on the reservation, i.e., where the defendant has significant ties to the community,” the National Congress of American Indians, in their letter to Congress last week explained. NCAI also pointed out that, “Indian tribes are not a racial class, they are a political body – so the question is not whether non-Indians are subject to Indian court – the question is whether tribal governments, political entities, have the necessary jurisdiction to provide their citizens with the public safety protections every government has the inherent duty to provide… Indeed, placing more funding in the hands of state or federal authorities to administer this process, concerns tribes deeply as there has been little, to no action on most of these cases, with 62 percent of the cases being declined for prosecution. “The answer, as in many conflicts, may be education and effort. In this case, it’s a combined effort to support justice in the law, and the infrastructure for justice in Native America. The facts are very disturbing. As well, it may be time to understand what a justice system looks like that is multi- jurisdictional. Native people are subjected to both tribal and non-tribal law, and, unfortunately, make up a disproportionate segment of North Dakota’s prison population. That’s a different issue, but it does seem fair, that non-Native people committing crimes in Indian territory should not be sheltered by a lack of jurisdiction, or in some cases, interest. We will see how the House of Representatives debate goes.

At some level, psychologically and beyond, this is of absolute importance to tribal nations. The ability of a tribal government to protect those who are most vulnerable is crucial to the dignity of a people. The folly of the Supreme Court’s Oliphant v. Suquamish Indian Tribe decision that precluded tribal criminal jurisdiction over non-Indians on the reservation is apparent. The VAWA brings, frankly into the spotlight, the need to protect tribal citizens, and address protection and prosecution of non-Natives who have chosen to live within Indian country. At some level, if you live there, just as tribal citizens off reservation, it seems fair that jurisdiction should apply. It is also not logistically feasible for federal or state governments to maintain the predominant criminal jurisdictional authority over Indian country. Non-Indian authorities are often situated far from reservations and do not have the manpower to thoroughly investigate and prosecute the high number of reservation crimes that fall under their jurisdiction post-Oliphant. And, as evidenced in the case of violence against Native women, follow through is nonexistent. Native nations have the absolute right and need to protect our citizens.

As Cantwell testified, “The notion that this is somehow abrogating individual rights just because the crime takes place on a tribal reservation is incorrect. So I ask my colleagues, do you want to continue to have this unbelievable growth and petri dish of crime evolving? Because criminals know, when you have a porous border that is where they are going to go.”

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Comments

Excellent article.
I don't understand how there would be any doubt that anyone on a reservation is subject to the Native jusridiction. This is beyond just simple fairness, it leaves Native women utterly unprotected from abuse by outsiders.

This may be a Question of : Diversity Of Citizenship, where the Non-Indian is NOT a Citizen of The Reservation, and a Question of a Qualified Trial Court. of Law..................................................................................................................
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Example" Local Justice Courts in many States were required to have a Qualified Sitting Judge to determine the Legality of a Charge against The Defendant.(Writ of Constitutional Habeas Corpus Rights) ........................
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The Justice Court Judge previously was not required to have been a Graduate of a Certified Law School, nor a member of The State Bar; which would insure the Professional & Learned Knowledge of a Sitting Judge........................
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There was no Statute Requirement mandating The Justice Court having to meet those Certified Qualifications; other then the ability to Read,Write,& be a US Citizen..........................................................................................................
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This was changed in Statute Requirements, so as to at least imply that a Justice Court Judge was Legally Qualified to Hear The Matter..................
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By Legal Procedure & Local Rules, this would move the Matter to a Federal Court; because of the Diversity of Citizenship automatically would Bar The Local Court from Hearing The Matter - but would be set before a US Magistrate Judge because of the Conflict of Interest generated - which would thereby Re-State The Offense into a Federal Statute Violation of Criminal Code.........................................................................................................
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The main argument noted by the Petitioner in this Question is the "Unresponsiveness" of Local Prosecution in the alleged "Crimes Against Persons of Indian Ethnic Origin"; implying that Non-Indians have an Immunity of Prosecution because they are Non-Indian which "Imply's Obstruction of Justice;or Mis-Use of Legal Procedure........................................................
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The Reservation Tribunal has the ability and Duty to file a Criminal Complaint with the Local and Federal Jurisdiction in claiming Injury to The Indian Victim;not necessitating that the Female Indian be of a Special Protected Class because of there Sex & Ethnic Origin..........................................
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Tribal Law Enforcement have the ability to exercise Joint Criminal Investigations, and Petition Judicial Jurisdiction for Victim Re-dress of a Wrong.........................................................................................................
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Civil Claims of Injury may also be submitted on behalf of The Victim for any alleged Civil Rights Violations pertaining to the same event as Constitutional Rights are not denied because of their Ethnic or Gender Origin............
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As to Non-Indian's living on NAI Reservations, there appears that to enjoy this benefit; there must be an informed "Rights Waiver" acknowledged by the Non-Indian and Guidance by Benefit of Qualified Legal Counsel as to what Legal Jeopardy they are submitting too - just as a NAI would in submitting to Federal/State/Local Jurisdictions - In other words, "Informed Consent".........
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Because of possible Witnessed "Pattern of Conduct" by Local Jurisdictions; there is indeed a sense of bias by NAI as to the "Lack Of Legal Fairness to NAI" in Crimes of Violence being properly addressed by Non-Indian Courts of Law - understandable because of perceived Legal Abuses.....................
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I believe that is because of ignorance to Other Legal Procedure Options; which can be addressed in a more Speedy manner by Tribal Legal Counsel.
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( SEE : NARF as Friend of The Court Brief)